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The likelihood Lance Armstrong will have to pay many millions to settle the whistleblower lawsuit brought by former teammate Floyd Landis increased tremendously last week with the announcement that the Justice Department is joining the case.

But as with any litigation, anything can happen. Here are some questions and answers about the lawsuit, based on my experience with “qui tam” (whistleblower) cases:

The Justice Department decision to join the whistleblower lawsuit against Lance Armstrong increases pressure on him to settle. (Photo: Wikipedia)

What does it mean for the Justice Department to “join” the case?

Landis filed his whistleblower case under the False Claims Act. That law gives private citizens a financial incentive to file suit on the government’s behalf against individuals and entities who they know are cheating the government. These whistleblower cases are filed “under seal” – meaning they aren’t initially made public – so the government has an opportunity to investigate the whistleblowers’ allegations and decide whether to “intervene,” or join, the case. The Justice Department announced last Friday that it was intervening in the lawsuit against Armstrong and other named defendants. The odds of a whistleblower case succeeding are much greater when the government joins, because the government only joins cases it believes it can win.

Does the government’s decision to intervene in the whistleblower lawsuit mean that there will be a trial?

Armstrong’s lawyer has said that the government has been in settlement negotiations with Armstrong while the matter was still under seal, but those discussions fell apart. Even though the case now will enter active litigation, it is not unusual for settlement negotiations to restart even while trial preparation is underway. Most civil cases are resolved before trial, and certainly the government’s decision to intervene will put additional pressure on the defendants to settle.

If there is a trial, when will it be?

Judge Colleen Kollar-Kotelly, the federal district court judge assigned to the case in Washington, DC, where the case was filed, will set a date after conferring with the parties. At this early point, no trial date has been set. Much pre-trial work – including motions, document discovery and witness depositions – must occur, so it is difficult to predict now when a trial might occur.

What has the government said about how much money they are seeking from Armstrong and the other defendants?

Defendants who violate the False Claims Act are liable for up to three times damages plus $5,500 to $11,000 for each false claim. In announcing his decision to intervene in the whistleblower lawsuit, U.S. Attorney Ronald C. Machen Jr. said Armstrong and his associates “took more than $30 million from the U.S. Postal Service based on their contractual promise to play fair and abide by the rules.” So the amount the government might be able to recover from them is more than $90 million. Media reports say Armstrong offered to pay $5 million to settle, but the government wanted twice that amount.

Armstrong’s lawyers have argued that the Postal Service made more money from the sponsorship than it paid to sponsor Armstrong and his team. If that is true, why should Armstrong have to pay the government any money?

Armstrong’s lawyer has said that the Postal Service made more than $100 million from the sponsorship. Even if the Postal Service did receive some benefit from the success of Armstrong’s team, it should not – and will not – negate any potential liability under the False Claims Act. The Postal Service’s gain is irrelevant to the question of whether Armstrong broke the law. If Armstrong and other defendants procured $30 million from the US government by falsely promising to abide by anti-doping requirements, then they will be liable no matter what gain the US government might have received – particularly since the Postal Service’s gain was based on the team’s extraordinary success due to doping. Remember, Armstrong himself said that without doping the team would not have won. Whether there should be an offset for any gains received by the Postal Service is purely a question of damages. Machen’s statements have indicated his belief that the Postal Service suffers continuing harm from being associated with Armstrong’s team, which is important to note. This suggests that the United States may argue that its damages are far greater than the contract’s $30 million.

Could Armstrong go to jail as a result of this case?

The whistleblower lawsuit is a civil case. It’s up to the government to decide whether to pursue criminal charges. News reports said that Armstrong wanted immunity from criminal prosecution as part of a settlement with the government, but the government didn’t offer that as part of the deal that was being negotiated.